ALLISON CLAIRE, Magistrate Judge.
On September 3, 2014, the court issued an order to show cause requiring defendants the Stockton Police Department, J. Hughes, Bruce Morris, John McLaughlin, and Thomas Heslin to reimburse the United States Marshals Service ("USM") for personal service of process under Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless they filed written statements showing good cause for their failure to waive service . ECF No. 22. On October 2, 2014, the court re-issued its order to show cause, which the undersigned had mistakenly failed to direct the Clerk of the Court to serve upon defendants. ECF No. 24. On October 21, 2014, defendants the Stockton Police Department, J. Hughes, Bruce Morris, and Thomas Heslin ("City Defendants") filed their response to the court's order, arguing that they failed to waive service for good cause because the entire action was stayed when the City of Stockton filed for bankruptcy. ECF No. 27.
The filing of bankruptcy by a defendant operates as a stay of all judicial proceedings against it "that [were] or could have been commenced before the commencement of the [bankruptcy] case." 11 U.S.C. § 362(a);
Nevertheless, the fact that the instant action is subject to an automatic stay does not constitute good cause for the Department's failure to waive service. Federal Rule of Civil Procedure 4(d)(1) imposes a duty on defendants "to avoid unnecessary expenses of serving the summons." Rule 4(d)(2) requires that the court tax costs of service of process on any defendant who fails to show good cause for failing to sign and return a timely waiver of service. Fed. R. Civ. P. 4(d)(2). The advisory committee notes provide two examples of good cause: defendant's failure to receive the request, and defendant's inability to understand the notice due to illiteracy in English. Fed. R. Civ. P. 4(d) Advisory Committee's Note (1993 Amendments). Both of these examples amount to a lack of actual notice of the duty to avoid the expense of service. The pendency of bankruptcy proceedings does not amount to a lack of notice. Defendants were fully aware that a complaint had been filed, that service had been ordered, and that failure to return the waivers would impose costs on the USM that would then be taxable against them.
Defendant's assertion of the bankruptcy stay amounts to a claim that the action against it is improper and cannot proceed. The Advisory Committee Notes to the 1993 Amendments enacting Rule 4(d) specify that "it is not a good cause for failure to waive service that the claim is unjust." Fed. R. Civ. P. 4(d) Advisory Committee's Note (1993 Amendments);
The fact that the Department may invoke the automatic stay to protect itself from litigation does not excuse the failure to waive service, and consequent imposition of expenses on the USM. The proper course would have been to waive service, thus avoiding the costs of personal service, and promptly file a notice of automatic stay. Defendants did not file a notice of the stay in this case until October 8, 2010, almost two months after accepting service.
The automatic stay does not preclude the court from ordering the Stockton Police Department to pay the costs of service. Section 362(a) automatically stays all judicial proceedings "that [were] or could have been commenced before the commencement of the [bankruptcy] case."
The City Defendants also seem to argue that defendants J. Hughes, Bruce Morris, and Thomas Heslin had good cause not to waive service because this action is stayed as to them as well.
The court need not resolve that question at this juncture. It is enough that the assertion of the bankruptcy stay by the individual defendants goes to the question whether the action against them is proper or may be pursued at this time. That an action is not properly brought does not constitute good cause for the failure to waive service. The individual defendants could easily have avoided the costs of service by returning the waiver forms. Because the costs of service were incurred after the filing of bankruptcy, the stay does not prevent this court from ordering reimbursement even if the stay applies to the individual defendants.
For the foregoing reasons, the court finds that defendants J. Hughes, Bruce Morris, John McLaughlin, and Thomas Heslin have failed to state good cause for failing to waive service.
The USM requests reimbursement of the costs annotated on the USM-285 forms. The returns of service reflect an individual service charge of $65.00 per defendant, plus a single mileage fee of $56.00 that is recorded on the return of service for John McLaughlin.
In light of the foregoing, IT IS HEREBY ORDERED that:
1. The October 2, 2014, order to show cause, ECF No. 24, is discharged; and
2. Within 14 days from the date of service of this order, defendants the Stockton Police Department, J. Hughes, Bruce Morris, John McLaughlin, and Thomas Heslin shall pay to the United States Marshal the total sum of $381.00 for effecting personal service on defendants.
3. The Clerk of the Court shall serve a copy of this order on the United States Marshals Service.